'Very shortsighted': Why Sask. defence lawyers don't want preliminary inquiries restricted
Hearings help pre-screen trials and are useful practice for witnesses: lawyers
Saskatchewan defence attorneys are speaking out against a plan by the federal government to limit the use of preliminary inquiries, calling it a "backward" and "short-sighted" step.
Citing "significant strain" in the country's criminal justice system, the federal Department of Justice tabled a bill Thursday that would limit the use of preliminary inquiries to only cases involving "the most serious offences" punishable by life imprisonment.
"This would free up court time and reduce the burden on some witnesses and victims, including victims of sexual assault, who otherwise would have to testify twice — once at the preliminary inquiry and once at the trial itself," the department said in a release.
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But defence lawyers working in Saskatchewan said the change would disadvantage some witnesses.
"Sexual assault complainants occasionally may have to testify twice but in actual fact many of them say they've benefited by the dry run of going through that relatively short cross-examination at a preliminary hearing," said Mark Brayford, a defence attorney and a vice-president of the Canadian Council of Criminal Defence Lawyers.
"We can all think of times when we've been asked questions and when we're done we think, 'Oh, gee, why didn't I say this?'
Preliminary inquiries — which are intended to determine if there is sufficient evidence for a case to go to trial — typically wrap up in a matter of hours, while trials can drag on for weeks, Brayford added.
"A lot of sexual assault complainants don't have to go through a jury trial because the cases get resolved at the preliminary hearings," he said.
Useful screening tool
The inquiries are also useful for judges when deciding whether a case goes to trial, said Nicholas Stooshinoff, a defence lawyer and president of the Saskatchewan Trial Lawyers Association.
"Without a transcript from a preliminary inquiry, that judge is a bit hamstrung in how he or she can make observations that are very useful to the Crown and to the defence in assessing the quality and strength of their case," said Stooshinoff.
Both Brayford and Stooshinoff fear restricting preliminary inquiries will lead to more cases ending up in trial court.
"We think that the government is taking a rather short-sighted approach and a bit of a knee-jerk reaction," said Stooshinoff on behalf of his association.
Bill needs to be debated
Brayford acknowledged it may seem counterintuitive for defence lawyers to speak against the federal government's plan.
After all, "I make three or four times as much money to run a trial as to run a preliminary hearing, and this will double the number of serious trials that have to be run," said Brayford.
"But it's certainly not in the best interest of society."
The federal government's bill will need to be debated before it is or is not approved.
Both Brayford and Stooshinoff say their organizations hope to be consulted during that process.
Saskatchewan Court of Queen's Bench Chief Justice Martel Popescul has previously told CBC News he does not believe Saskatchewan suffers from a backlog of cases due to preliminary inquiries.
He declined to be interviewed for this article.